I think
we are witnessing the beginning of the end of a major era in world
history. It may take fifty years, it may take a hundred, but the age of
copyright is drawing to a close. I don’t know if this is a good thing
or a bad thing, but it’s inevitable. And I say this as the author of
two books and over 75 columns like this one, all copyrighted.

Just
550 years ago this year, a guy named Johann Gutenberg figured out how
to make large quantities of metal type in a hurry. He didn’t invent
printing—the Chinese had been doing that with wooden blocks for
centuries—but he did find a way to make it fast and efficient.
Gutenberg changed the world and helped to bring on the Renaissance.

Johann Gutenberg

There
were no copyright laws at that point. Before the printing press, books
in Europe were copied by hand, and having someone go to the trouble of
copying your book was about the highest praise an author could get. But
with the printing press, the concept of intellectual property was born.
Over the next two centuries or so, copying books went from being high
praise to being a crime. As printing presses were large and heavy—i.e.
difficult to conceal and difficult to move—it wasn’t all that hard to
prosecute the offenders. The smaller and faster they got, though, the
tougher it became.

I’m
old enough to remember when photocopiers became commonplace. At first,
there used to be signs in libraries, warning the users against
duplicating copyrighted material—any copyrighted material, ever.
But people did it anyway. They didn’t think they were doing any harm,
and they weren’t planning to sell the copy, they just needed it for
their own use.

When
enough people feel that it’s OK to do a thing, that thing ceases to be
wrong in their own cultural context. You can complain about moral
relativism all you like, but the facts are inescapable: that’s how
people behave. When the photocopier came along, people simply didn’t
think it was wrong to copy a few pages out of a book, even though it
was against the law and the authors would have preferred that they buy
the whole book. So eventually, the Fair Use doctrine evolved with
respect to copyright materials. The law changed. It’s now OK to
photocopy parts of books for educational, non-commercial use. In
effect, the authors and book publishers had to give some ground in the
face of the overwhelming tide of public opinion.

You can see where this is going, can’t you?

On
June 27, 2005, the US Supreme Court decided to hold companies that make
file-sharing software responsible for copyright infringements
perpetrated by the software’s users. Everyone expected that they would
rule as they did when Universal City Studios sued Sony over the Betamax
in 1984: there were legitimate uses of the technology, and it shouldn't
be held responsible simply because it can be used unlawfully.
Instead, however, they ruled that file-sharing software actively
encourages piracy and the makers should be held accountable.

The
Supreme Court's action has done the exact opposite of what MGM and the
other content distributors who brought the suit hoped it would.
File-sharing software will become open-source and public domain.
File-sharing will continue to grow ever more popular, but now there
will be no one to sue. The Supreme Court's ruling hasn't even delayed
the inevitable; it has actually brought it closer.

There’s
no intrinsic reason why someone should continue to get paid for
something long, long after the labor they expended on it is complete.
Architects don’t get paid every time someone steps into one of their
buildings. They’re paid to design the building, and that’s that. The
ostensible reason we have patent and copyright law is, as the US
Constitution says, “to promote the Progress of Science and useful
Arts.” But travesties like the Digital Millennium Copyright Act don’t
promote the progress of science; they actively discourage it. So do
software and biotechnology patents. The patent system was intended to
allow inventors to profit for a limited time on particular inventions,
not to allow huge technology companies to put a stranglehold on
innovation by patenting every tiny advance they make.

Right
now, the music and movie industries are howling and beating their
breasts and doing their best to go after anybody who violates their
copyrights on a large scale. The fury with which they’re doing it is a
measure of their desperation. The Sony rootkit debacle is a perfect
example: in an effort to prevent piracy, they secretly installed
dangerous spyware into people’s PCs, which itself may have been a
criminal act. This was about the dumbest public-relations move since
Take-Two lied about the Hot Coffee content, and as with Take-Two, it
will cost them vastly more than they could hope to gain from it. Did
they really think nobody would find out?

The
lawsuits, the spyware, the DMCA: these are the death struggles of an
outdated business model. It’s the modern-day equivalent of throwing the
Christians to the lions in an effort to discourage Christianity. It
didn’t work for the ancient Romans and it won’t work now.

Part
of the issue is related to the question of how much money it took to
create a copyrighted work in the first place. With books and music, the
answer is simply, “not that much.” Forget notions of what their rights
may be in law; the idea that a band or an author should be paid
millions upon millions over the next several decades for something that
it cost them at most a few thousand dollars to make, just feels silly
to most people. You’ll notice that it’s the megastars who are fighting
the hardest over this in music—Madonna, Metallica, and so on. They’re
the ones who stand to lose the most. But the smaller, less well-known
groups are embracing new business models for distributing their music.
They’re like authors back before the printing press: “Copy my music and
listen to it! Please!”

Movies
and video games are more problematic. They take millions to make in the
first place and a good many of them don’t earn back their investment,
even with full copyright protection in place. If we’re going to go on
making video games, the publishers have to find a way to make them pay
for themselves. One approach is an advertising model, although I’m
reluctant to say it because I hate the idea of ads in games. Another is
to treat games as a service rather than a product. With broadband
distribution, I think this is increasingly likely: you won’t ever have
a durable copy of a game, you’ll download it every time you play it.
Each instantiation will be unique, personalized for a particular
machine and Internet address; encrypted to discourage hacking; and
expires after a few hours. After that you’ll have to download a new
copy.

Yet
another model is the donor model: somebody who is known for creating
great work can collect up donations in advance; when he has collected
enough to fund the work, he builds it, and releases the game
copyright-free when it’s finished. The donors will have paid and
everyone else gets it for nothing, but they get it first and perhaps
some special recognition for their contribution. I’d be happy to put
down $40 two years in advance for a new Sid Meier game, particularly if
I knew it would be released copyright-free when it came out. And I bet
a lot of other fans of Sid’s work would say the same.

The
donors have to trust that the developer will finish it, of course; but
this is effectively how freeware development works now. Somebody makes
a name for themselves with a piece of freeware; they ask for donations;
the donations help to fund further work on a new version. So far it has
only been tried on a small scale, but—as the mobile and casual games
are showing us—there’s still plenty of demand for small scale games in
the world.

(A
variant of this system, pioneered by cyberspace engineer Crosbie Fitch,
is already in place for music, except that people give pledges rather
than donations. When the musician releases the work, she collects all
the pledges made towards it. See www.quidmusic.com for details. Credit where it’s due: I first heard about this whole idea from Crosbie.)

In
short, there are a heck of a lot of ways to recover the development and
marketing costs of video games besides trying to sell individual
physical copies and prevent their duplication. That system is awkward,
wasteful, and theft-prone. It supports too many middlemen and, like
Prohibition, puts money in the pockets of some very nasty gangsters.

Of
course, some alternative distribution models still rely on copyright,
and publishers will still be trying to prevent people from
redistributing their content. But sooner or later that model is doomed.
The perceived value of a thing is inversely proportional to the ease
with which it can be duplicated. If the public simply refuse to
acknowledge that copying books or movies or software is wrong, then in
a democracy, it will eventually cease to be wrong. People elect the legislators, and legislators make the laws.

Does
the end of copyright mean that books or music or movies or games will
die? Of course not. The urge to create is too strong in all of us, and
consumers will always be willing to pay for novelty and for excellence.
It may mean that nobody gets mega-wealthy any more. What it does mean
for sure is that the giant dinosaurs that currently dominate the
distribution channels had better learn to adapt or die. There are a lot
of fast-moving little mammals in the underbrush eating the dinosaurs’
eggs.